Neway Mengistu v. Carolyn W. Colvin

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 12 2013

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

NEWAY MENGISTU, No. 11-56202

Plaintiff - Appellant, D.C. No. 2:10-cv-05227-JC

v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,

Defendant - Appellee.

Appeal from the United States District Court
for the Central District of California
Jacqueline Chooljian, Magistrate Judge, Presiding**

Submitted May 17, 2013***

Before: HUG, FARRIS, and LEAVY, Circuit Judges.

Neway Mengistu appeals pro se from the district court’s judgment affirming

the Commissioner of Social Security’s denial of his applications for Social

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Security disability insurance benefits and supplemental security income benefits

under Titles II and XVI of the Social Security Act. We have jurisdiction under 28

U.S.C. § 1291. We review de novo a district court’s judgment upholding the

denial of social security benefits, Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir.

2010), and we reverse and remand.

Mengistu asserts that additional evidence he submitted to the Appeals

Council would have changed the outcome of the disability determination.

Although we do not have jurisdiction to review the Appeals Council’s denial of

further review, we may consider additional evidence presented for the first time to

the Appeals Council when reviewing the agency’s disability determination. Taylor

v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231-32 (9th Cir. 2011).

The district court erred in concluding that a remand was not warranted

because the new evidence, Dr. Gurevitch’s September 1, 2009, report, relates to the

relevant time period and there is a reasonable possibility the report would have

changed the Administrative Law Judge’s (“ALJ”) decision. See Mayes v.

Massanari, 276 F.3d 453, 462 (9th Cir. 2001) (to warrant a remand, appellant must

show “reasonable possibility” that new evidence would have changed outcome of

administrative hearing). Therefore, we reverse the district court’s decision

affirming the Commissioner’s decision and remand with instructions to remand to

2 11-56202
the ALJ for consideration of Dr. Gurevitch’s report and for reconsideration of

Mengistu’s application for benefits.

In light of this disposition, we do not reach Mengistu’s other arguments.

REVERSED AND REMANDED.

3 11-56202